115 S.W.2d 453 | Tex. App. | 1938
This is a suit by appellee, Standard Accident Insurance Company, to set aside an order of the Industrial Accident Board awarding appellant, Lester Wilson, compensation for injuries found by said board to have been sustained by him while employed by E. L Martin and while engaged in the course of such employment. Appellant filed a cross-action in which he alleged that he, while an employee of the E. L. Martin Construction Company and engaged in the course of such employment, sustained accidental injuries, and, in substance, that appellee had issued to his said employer a compensation insurance policy, and that the same was in force at the time. Other allegations covered the nature of the injuries alleged to have been sustained, the disability alleged to have resulted therefrom, and the duration thereof.
The case was submitted on special issues. The jury, in response to issues Nos. 1 to 3, inclusive, found that appellant sustained an accidental injury; that he was at the time an employee of E. L. Martin and engaged in the course of his employment with said Martin. The answers of the jury to other issues are not material to the disposition of this appeal. Each of the parties filed a motion for judgment on the verdict rendered. Appellant's motion was overruled and appellee's motion was granted. Judgment was thereupon rendered that appellant take nothing by his suit. The transcript does not contain any objection to the charge of the court by either party. Neither does it show a request for the submission of any issue or issues by either party. No statement of facts has been filed in this court.
The verdict of the jury was insufficient to justify the rendition of a judgment in appellant's favor in two particulars. First, there was a variance between appellant's allegation that he was employed at the time he sustained his injuries by the E. L. Martin Construction Company and the finding of the jury that he was employed at that time by E. L. Martin; and second, there was an entire absence of a finding that appellee had issued a policy of compensation insurance to either the E. L. Martin Construction Company or to E. L. Martin as an individual. The burden was of course upon appellant to allege and prove that he was an employee of some person, firm, association, or corporation that held a compensation insurance policy issued by appellee. Traders General Ins. Co. v. Stubbs, Tex.Civ.App.
Absent some affirmative error, properly assigned and prejudicial to appellant, an appellate court cannot reverse a proper judgment of the trial court merely to afford the appellant an opportunity to amend his pleadings, introduce additional evidence, or procure the submission of issues which were waived by him in the trial from which the appeal is prosecuted. Hankins v. Minchew, Tex.Com.App., 285 S.W. 264, par. 1; Bunn v. City of Laredo, Tex.Civ.App.
The judgment of the trial court is affirmed.